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Abstract:
In 2006, the South African Constitutional Court found a constitutional right to participate in the legislative process in the case of Doctors for Life, Case CCT 12/05 (decided 17 August 2006). In this article, we argue that, first, legislation is better when legislators are required to invite and attend to public input, and, second, citizenship is better when legislators are required to invite and attend to public input. Doctors for Life puts South Africa on the road to improving both legislation and citizenship. In the United States, this road is largely untraveled. While rejecting traditional representative democracy as an adequate expression of political participation, Doctors for Life does not go as far as it could in terms of entrenching public participation in the South African legislative process. Nonetheless, it offers a model of an interim place that the United States can consider. The case also offers a model for international human rights exploration in an area of underdeveloped theory, especially in regard to enhancing respect and dignity as aspects of citizenship in a democratic state.

democracy, human rights, South Africa, citizenship

Abstract:
A key feature of welfare reform in 1996 was the replacement of a national entitlement to a minimum economic provision for each poor family by a system under which states enjoy considerable flexibility in deciding whether and under what terms to provide for families in poverty. Some states devolved that authority further down the chain to local or private organizations. In Maryland, the state neither devolved authority to local jurisdictions nor retained it at the state level. Instead, the state placed a large measure of authority for program design and implementation in the hands of state officials whose offices are located in and serve people in one of the counties or the City of Baltimore.

By using state data, I've analyzed whether, after welfare reform, it matters to welfare applicants and recipients where they live. It turns out that, beginning with making the first decisions about whether to grant benefits and then assessing how a family might be able to move from welfare to work, it depends a great deal on where in the state an applicant or recipient lives. Differences in the delivery of benefits and services may correlate to some degree with the percentage of women employed in the local jurisdiction, but there is little correlation to unemployment rates or other important differences among the jurisdictions. Further, the data indicate that residents of the two jurisdictions with majority African-American residents are unable to access two important program features.

I argue that the state's differential treatment of its residents is actionable as a denial of equal protection under the state constitution because there is no adequate justification for the discrimination. In my view, the applicable standard is, at minimum, rational basis with bite. In the alternative, I argue for a higher standard based on the potential for harm to multiple vulnerable groups, including women, children, people of color and people with disabling conditions. I distinguish a school financing case on the basis that, in that case, it was local control that led to the differences in funding of schools in the various jurisdictions. In the absence of local control, decisions about welfare reform do not necessarily conform to local interests and concerns and discrimination on the basis of a resident's particular location within the state cannot, therefore, be justified on those bases.

Equal protection, State Constitution, Welfare Reform, Race, Women, Children, Poverty, Disability, Local Government